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A description of a number of the changes to UK design law implemented by the Intellectual Property Act 2014 come into effect on 1 October.
A key change is that the commissioner will no longer automatically own the, often valuable, UK unregistered design right in a commissioned design. Instead, for designs created on or after 1 October, the owner of UK unregistered design right in a commissioned design will be the designer or the designer’s employer where the design is created in the course of the designer’s employment. So, it becomes even more important when parties work with each other in a way that may generate intellectual property rights that an appropriate agreement is in place, in advance, to establish who will own any rights. In our experience, time spent clearly setting out the terms of a relationship between parties at the outset of a project is well spent as it will avoid a potential misunderstanding or costly dispute later on.
Changes to the law on UK registered designs from 1 October include making the intentional copying of a registered design a criminal offence, under certain circumstances. This gives registered designs the same level of protection as copyright and trade marks.
The definition of what constitutes criminal copying of a registered design is narrower than that for infringement of the registration under civil law. The copying must be intentional, without consent of the owner of the registration and in the knowledge (or with reasonable belief) that the design is registered. The copied product must be identical to or very closely match the design protected by the registration.
Criminal proceedings will be brought by Trading Standards Officers, as is currently the case for copyright and trade mark offences. In England and Wales it is also possible for private prosecutions to be brought.
It is important to note that the criminal provisions apply only to registered, and not unregistered, designs. Registered design protection should therefore be considered for products susceptible to copying, and particularly consumer products where Trading Standards can be expected to take an interest in enforcement.
Further changes to design law coming into force on 1 October include protection for parties who have started using a design which is subsequently registered by someone else, a slight narrowing of the definition of what is protected by UK unregistered design right, a refinement of the definition of “originality” in relation to unregistered design right and tightening of the definition as to which companies qualify for unregistered design right.
1 October also brings changes to UK patent law, to be discussed in another article.
If you require any further information regarding the changes to design law and best practice under the new law please contact James Robey or your usual Wilson Gunn contact.